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Tuesday, 22 November 2016

The International Criminal Court, based in The Hague, Netherlands, seems to feel that the only people capable of committing war crimes are Africans.

You can go here to view a list of 32 people indicted by the ICC since the year 2005. All of them are from Africa. The list includes such notable U.S. enemies as Muammar Gaddafi and his son, Saif al-Islam Gaddafi.

Some African nations have said ‘enough is enough’ and ended their membership in the court, and just last week Russia announced that it too will follow suit.

The International Criminal Court, or ICC, was set up with the passage of the Rome Statute, an international treaty adopted in Rome in 1998. The treaty formally went into effect in 2002, and the ICC began operations that same year. States which have either ratified or become signatories to the treaty become, in turn, members of the ICC. Currently 124 countries, at least officially, hold such membership. These are each allowed one voting representative on the Assembly of State Parties. The ASP is a legislative body set up to provide “management oversight” of the ICC, but usually it only meets once a year.

The court was given a mandate to investigate and prosecute crimes of genocide, war crimes, crimes against humanity, and crimes of aggression. There’s lots of that going on in the world, you know. Crimes against humanity for instance entail large-scale attacks against civilian populations. Just off the top of our heads we might think of, oh, say, Israel’s attacks against Gaza and its deliberate targeting of hospitals, UN schools, and residential buildings.

Or take the category “war crimes”–crimes falling under this classification include the torture of prisoners, oh, such as occurred in US-run torture facilities. Heck, we even have Obama admitting, “We tortured some folks.”

But up until January of this year, just about the only armed conflict venues the ICC had ever launched formal investigations into were in… Africa.

Ah! But on January 27, 2016, in a rare departure, the ICC announced it wouldlook into some alleged crimes committed outside of Africa.

Umm…to be sure, the scope of this new investigation will not cover US officials such as, say, Alberto Gonzales, or the US treatment of prisoners in Iraq; and…well…neither is the ICC investigating Israel for its firing of white phosphorus shells into a UN compound in Gaza City on January 15, 2008, or the Jewish state’s use of the controversial “Hannibal Directive” during its 2014 war on Gaza, a measure which resulted in the deaths of 190 civilians in the town of Rafah on August 1, 2014–the date Palestinians have since come to refer to as “Black Friday.”

No.

Specifically the ICC has begun, or found itself compelled to begin, an investigation into the Russia-Georgia war over South Ossetia that occurred in 2008. And just to make sure the world understands it is being fair and impartial, the court has announced it has “gathered information on alleged crimes attributed to the three parties involved in the armed conflict – the Georgian armed forces, the South Ossetian forces, and the Russian armed forces.”

So yes, the court is now investigating Russia.

But as I say, the only indictments so far have been of Africans.

Perhaps it should come as no surprise, then, that last month three African countries announced their withdrawal from the court. The three countries are: South Africa, Burundi, and Gambia. The Parliament of Kenya has also voted to leave the ICC. And in 2015, the African National Congress issued a public statement in which it asserted that the “ICC is no longer useful for the purposes for which it was intended.”

But perhaps the real blockbuster came last week when Russia announced it, too, will be withdrawing from the Rome Statute and the ICC. This took place via an announcement posted on the website of the Russian Foreign Ministry on November 16.

Interestingly, on that same day, November 16, University of Illinois Law Professor Francis A. Boyle sent out an email containing a scathing indictment of the ICC, the legal scholar denouncing the court as “a joke and a fraud.”

The comments of both Boyle, who has an extensive background in international law, and the Russian government, were prompted by a recently-released ICC report blandly entitled, “Report on Preliminary Examination Activities 2016,” that was published on the ICC’s website on November 14.

The report (available here in PDF) offers the results of a “preliminary investigation” into nine different conflict areas in the world. The ICC views a preliminary investigation as a necessary step in order to determine “whether a situation meets the legal criteria” needed to warrant a full investigation. In other words, the ICC is investigating whether or not to do an investigation.

Of the nine different conflict areas, two are of particular interest: Palestine and Ukraine. Russia’s main concern, as you might expect, would be the findings pertaining to the latter. The concerns expressed by Boyle, on the other hand, were focused on the section of the report dealing with Palestine. Let’s take Palestine first.

The ICC on Palestine

ICC Prosecutor Fatou Bensouda

The report is a declaration of activities undertaken by the branch of the ICC known as the Office of the Prosecutor, referred to in the document as “OPT”, or simply “the Office.” The OPT’s main area of inquiry is the 2014 Gaza conflict, known as Operation Protective Edge. By contrast, Operation Cast Lead, the bloody conflict which took place in 2008-09, goes completely unmentioned, and the term “white phosphorus” does not appear anywhere in the report.

While the report does supply a “contextual background” to the Israel-Palestine conflict–in the course of which the Six-Day War is mentioned, as are Israel’s “unilateral withdrawal” from Gaza in 2005 and the election of Hamas the following year–most of the section on Palestine, as I say, deals with the events of 2014.

“All parties are alleged to have committed crimes during the 51-day conflict,” the report states, and the words “alleged” or “allegedly” are employed repeatedly throughout.

Alleged crimes said to have been committed by Palestinians include “attacks against civilians,” “use of protected persons as shields” and “ill-treatment of persons accused of being collaborators.” A single paragraph is devoted to each category, following which the report moves on to “Acts allegedly committed by the IDF,” and here the “alleged” crimes include “attacks against residential buildings and civilians,” “attacks against medical facilities and personnel,” “attacks against UNRWA schools,” and “attacks against other civilian objects and infrastructure.” Once again, a single paragraph is devoted to each alleged crime.

The ICC says it has reviewed “over 320 reports as well as related documentation and supporting material” in the course of conducting its preliminary investigation. The report also mentions a trip to Israel by the OPT that took place October 5 to 10, 2016. The visit is said to have been facilitated by “Israeli and Palestinian authorities,” but apparently did not include a visit to Gaza. At least none is mentioned. One place they did visit, however, is Hebrew University in Jerusalem, where supposedly the OPC staff “engaged with the law faculty.” Why there was need for such an engagement is not clear, although the report does say the trip to Israel as a whole was undertaken for purpose of “raising awareness about the ICC” as well as to “address any misperceptions” about the judicial body.

Boyle’s comments about the ICC report, or at least his “alleged” comments, we might say, were posted at the Al-Awda Yahoo group (Yahoo login required), and were also sent out by email.

In addition to branding the ICC “a joke and a fraud” the comment also makes reference to the visit to Hebrew University, which indeed is described on page 32 of the report.

The ICC’s “conclusion and next steps” in regard to its investigation on Palestine will be aimed at “continuing to engage in a thorough factual and legal assessment of the information available, in order to establish whether there is a reasonable basis to proceed with an investigation.” It will also “assess information on potentially relevant national proceedings, as necessary and appropriate.”

The ICC on Ukraine

Like Boyle’s posted comment, Russia’s announced withdrawal from the ICC also came on November 16–in a statement posted on the website of the nation’s Foreign Ministry. The statement does not single out Ukraine or the ICC report specifically. Its criticisms of the court are generalized. But the timing, just two days after the report’s publication, would strongly suggest that the one was prompted by the other.

The ICC report portrays the Maidan protests largely as a spontaneous popular uprising, making no mention of the US role in the overthrow of the Yanukovych government. Reference to the leaked phone conversation between the State Department’s Victoria Nuland and Jeffry Pyatt, the US ambassador to Ukraine, in which the two discussed who would become the new Ukrainian head of state, is completely omitted. “The protest movement continued to grow in strength and reportedly diversified to include individuals and groups who were generally dissatisfied with the Yanukovych Government and demanded his removal from office,” says the report, and the narrative adhered to is primarily that of the US:

On 21 February 2014, under European Union mediation, President Yanukovych and opposition representatives agreed on a new government and fixed Presidential elections for May 2014. However, on 22 February 2014, the Ukrainian Parliament voted to remove President Yanukovych, and he left the country that day to the Russian Federation.

In other words, it was all legal and on the up-and-up.

The relaying of events in Crimea and in Eastern Ukraine also follows a similar pattern. The Crimean referendum of March 16, 2014, in which 96.77% of voters chose to rejoin Russia, is referred to as “the alleged decision of residents of Crimea to join the Russian Federation,” with the report mentioning that the referendum “was declared invalid by the interim Ukrainian Government.” The “interim Ukrainian Government” means, of course, the government installed by the US, though the report doesn’t say so.

While occasional reference is made to crimes committed by “all sides” or “both sides” in the Ukrainian conflict, clearly the main focus is on the alleged transgressions of Russia and, to a lesser extent, those of armed opposition groups in Donbass that are allied to Russia. The crimes cited include:

Harassment of Crimean Tatar population

Killing and abduction

“Ill treatment”

Detention

Disappearance

Torture

The report also talks about destruction of property, including homes and schools, asserting that this has occurred “in both government-controlled territory and in areas controlled by armed groups.” But its fundamental conclusion is that the situation in Ukraine is legally classified as an “armed conflict.” As such, “the situation within the territory of Crimea and Sevastopol factually amounts to an on-going state of occupation.” Occupation by Russia, that is. Furthermore, “a determination of whether or not the initial intervention which led to the occupation is considered lawful or not is not required.” Or in other words, while Russia conceivably may have had some valid concerns (though the report leaves it entirely up to the reader’s imagination to guess what these might be), none of these will be taken into consideration by the ICC.

As noted above, the statement put out by the Russia Foreign Ministry makes no direct reference to the November 14 report, and its criticisms of the ICC are of a mostly generalized nature:

The ICC as the first permanent body of international criminal justice inspired high hopes of the international community in the fight against impunity in the context of common efforts to maintain international peace and security, to settle ongoing conflicts and to prevent new tensions.

Unfortunately the Court failed to meet the expectations to become a truly independent, authoritative international tribunal. The work of the Court is characterized in a principled way as ineffective and one-sided in different fora, including the United Nations General Assembly and the Security Council. It is worth noting that during the 14 years of the Court’s work it passed only four sentences having spent over a billion dollars.

And while Ukraine isn’t specifically mentioned, the 2008 conflict between Russia and Georgia is:

The Russian Federation cannot be indifferent to the Court’s attitude vis-a-vis the situation of August 2008. The Saakashvili regime’s attack on peaceful Tshinval, the assassination of the Russian peacekeepers resulted in the Court’s accusations against South-ossetian militia and Russian soldiers. Eventual investigation of actions and orders of Georgian officials was left to the discretion of the Georgian justice and remains outside of the focus of the ICC Prosecutor’s office attention. This development speaks for itself. We can hardly trust the ICC in such a situation.

The statement also acknowledges the widespread dissatisfaction with the ICC by countries in Africa:

In this regard the demarche of the African Union which has decided to develop measures on a coordinated withdrawal of African States from the Rome Statute is understandable. Some of these States are already conducting such procedures.

Conclusions

While some of those indicted over the years by the ICC may well have deserved it, at the same time, it’s hard not to draw the conclusion that the court has been used as a tool by powerful countries. Yes, it’s true, the ICC is conducting an ongoing “preliminary investigation” into the conflict in Afghanistan. The November 14 report in fact includes a section on Afghanistan which addresses crimes committed by the three main parties to the conflict: the Taliban, Afghan government forces, and the US-led international forces. With regard to the latter, the ICC states it has “a reasonable basis to believe” that the US “resorted to techniques amounting to the commission of the war crimes of torture, cruel treatment, outrages upon personal dignity and rape.”

Yet elsewhere in the same section, a somewhat contradictory view is offered:

Having reviewed information on a large number of incidents attributed to the international forces, the Office has determined that, although these operations resulted in incidental loss of civilian life and harm to civilians, in most incidents the information available does not provide a reasonable basis to believe that the military forces intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of attack.

The report goes on to discuss “a few other incidents,” said to involve international forces, though without offering much hope of a prosecution due to “a paucity of the information” concerning them.

The chances of the ICC prosecuting any US official for war crimes seems slim, and indeed as the New York Times put it in a report published on November 14, the court’s prosecutor “has been considering whether to begin a full-fledged investigation into potential war crimes [committed by the US] in Afghanistan for years.”

Or to be more precise, for years the prosecutor has been “investigating whether to investigate” the US.

Interestingly, the Times article goes on to note as well that the court has been “under great pressure to show that it is unbiased in its targets for investigation.”

I have yet to point it out, but I will do so here: the ICC report of November 14 also contains no mention of Saudi war crimes in Yemen.

In the wake of Moscow’s announcement of its withdrawal from the ICC, two Russian writers, Dmitry Rodionov and Sergey Aksenov, published a commentaryon the issue, noting, as did the Foreign Ministry, that the judicial body had spent more than $1 billion over the 14 years of its existence and in the process had handed down only four sentences. They comment:

…The Hague prosecutor called the Crimean referendum “illegal” and the situation on the peninsula “occupation.” The fact that Russian troops were present on the peninsula according to agreements with Ukraine is ignored by the report.

For all of next year and perhaps even longer, the ICC will gather evidence on Crimea. Hague investigations are usually dragged on for years. For example, the court’s prosecutor received permission to investigate the events in South Ossetia from 2008 only this year….

According to lawyer Ilya Novikov, the court’s negative decision on Crimea could potentially result in formal charges and ICC arrest warrants. This will enable the countries complying with the Rome Statue to arrest Russian citizens and send them to the Hague court.

Assistant professor of political theory at the Moscow State Institute of International Relations, Kirill Koktysh, has pointed out that the ICC’s legal position is incorrect. It was not an annexation that took place in Crimea like the Hague asserts, but a secession: first Crimea seceded from Ukraine and only then joined Russia. According to Koktysh, the ICC’s initiative resembles a PR action rather than a strict legal procedure.

Whether the ICC is engaging in a “PR action,” as the Russians comment, or whether the court is a “joke and a fraud,” as Boyle would seem to have it, the upshot is that for the entire 14 years since the court came into existence, the biggest war criminals in the world have skated away scot-free.